Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Tuesday, October 29, 2013

Today I will be a volunteer lawyer for the day at Landlord/Tenant court in Hempstead. Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project (VLP). The Nassau County Bar Association partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community. Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters. I will be with The Landlord/Tenant Project's Attorney of the Day Program, which assists thousands of men, women and children in court to prevent homelessness.

The most recent case I found on this issue is PICARD v. BIGSBEE ENTERPRISES, INC., 1984-13 (9-12-2013), 2013 NY SLIP Op 51495 (U) where the court noted:

"The second branch of defendants' motion seeks dismissal of the complaintas against the two individual defendants, Joseph Mallozzi and John Mallozzi(collectively "Individual Defendants"), on the ground that officers andshareholders of a corporation are not subject to civil liability. Inopposition, plaintiff argues that corporate officers, agents andshareholders may be held liable under article 6 of the Labor Law as"employers" and that the complaint alleges sufficient facts for theIndividual Defendants to be deemed plaintiff's employer.

The term "employer" is broadly defined in Article 6 to include "anyperson, corporation, limited liability company, or association employing anyindividual in any occupation, industry, trade, business or service." Indetermining whether an individual may be subject to civil liability as an"employer" under Article 6, courts consider factors such as whether theindividual exercises control of the day-to-day operations of the business,including determination of the rate and method of payment of employees (seeBonito, 106 AD3d at 625). Here, the complaint alleges that each of theIndividual Defendants "exercises sufficient control of each cateringlocation's day to day operations to be considered an employer of Plaintiffand those similarly situated under New York Labor Law" (Complaint ¶¶ 30-31).Accepting the truth of these allegations and according plaintiff the benefitof all reasonable inferences, the Individual Defendants have failed todemonstrate their entitlement to dismissal of the complaint at this earlystage of the litigation."

Friday, October 18, 2013

"In an effort to help alleviate barriers for domestic violence victims with limited English proficiency, Empire Justice Center has developed a resource that provides answers to frequently asked questions about how to obtain an order of protection and to fully access Family Court.

The pamphlet is available in the top three languages in which interpreters are sought in the NYS Courts, as well as English:

In this case, the Family Court, which denied a parent's application to relocate, was reversed by the Appellate Division. What I find most interesting about the case is the following:

1. Around the fall of 2008, the application to relocate was made in Family Court.

2. Trial on the issues of custody and relocation commenced around a year later 2009, and was conducted on 13 days over the course of 2½ years.

3. The Family Court issued it's decision in April 2012.

4. The Appellate Division reversed in October 2013 - but the matter was remanded for further proceedings at which provision shall be made regarding liberal visitation and an allocation of travel costs.

Over 5 years and perhaps more until the parent can relocate....when I was consulted on this issue the need was immediate due to lack of income. So do was the application in Matter of Kevin McK. v Elizabeth A.E.

Wednesday, October 16, 2013

Most
people believe that if they are transferred from a hospital directly to a
nursing home or rehabilitation center, they will be entitled to Medicare
coverage for a certain period of time. This is generally true. However, a new
status category employed by hospitals may thwart those benefits.

How It Works

When
an individual has a 3-day hospital stay and then transfers to a skilled nursing
facility or rehabilitation center, s/he will be entitled to a maximum of 100
days of Medicare coverage if all eligibility criteria are met and the individual
is making progress and/or maintaining their skill level due to the therapy or
rehabilitation services provided. The first 20 days will be paid for by Medicare
in full and days 21-100 will be subject to a co-pay (currently $148/day), which
can be covered by medi-gap or other private health insurance plans.

The Problem

Unfortunately,
many people are currently being denied this Medicare coverage due to action at
the hospital level. Instead of admitting the patient, the hospital keeps the
person in "observation." While a patient can be kept on "observation" for days
at a time, it does not rise to the level of a hospital "admission." As such,
when that patient is transferred to a nursing home or rehabilitation center,
Medicare will not cover any of the costs of their care. With nursing
homes and rehabilitation centers costing on average $400 per day, this is a huge
financial burden to the patient and their family.

What You Can Do

When
your loved one is in the hospital, ask a hospital staff member if s/he has been
formally admitted to the hospital and has inpatient status. If necessary, engage
the help of your loved one's primary care physician to ensure a formal hospital
admission. It is often the case that the patient has no idea of their "status"
in the hospital until s/he is transferred to a nursing home and by then, it is
too late to secure a formal admission and in-patient status.

By
knowing your rights, you can advocate for your loved one to make sure your loved
one gets the benefits to which s/he is entitled.

*************************

Genser
Dubow Genser & Cona is recognized as a leading elder law and estate planning
firm on Long Island. The firm provides creative advocacy and cutting edge
planning strategies and has been featured in many publications including: The
New York Times, The Wall Street Journal, Newsday, L.I. Business News,
Kiplinger's, Reader's Digest and many others. GDGC attorneys are frequent
contributors to Newsday's Act II "Ask the Expert" column and have appeared as
guests on WNBC-TV, CNN-fn, News 12, News 55, Channel 21 "Act II With Newsday"
and many radio stations including WOR, WCBS AM and WFAN."

Tuesday, October 15, 2013

In a column today in Newsday, there is a discussion regarding an employee quitting because of one instance of verbal abuse by the employer. The advice was "Generally, if you resign, you don't qualify for unemployment benefits. But you should apply because the Labor Department stresses that it decides claims on a case-by-case basis."

I would add this - on the claimant's application, if the claimant states voluntary separation as the cause of separation, there is generally no benefits paid until the investigation is complete by the DOL - and then if good cause for separation is established , benefits will commence. Some claimants are aware of this and state another reason for separation (lack of work for example) so that benefits will start immediately and hope that the employer will not contest or that the DOL investigation will result in a favorable decision on the issue of voluntary separation.

There are great risks in the latter approach - if the ultimate determination is that the claimant voluntary separation was without good cause, the DOL may issue a false statement penalty as well as seek repayment of benefits paid. From the DOL website:

"Section 594 of the Unemployment Insurance Law provides that "a claimant who has wilfully made a false statement or representation to obtain any benefit ... shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense ...". It further provides that the claimant shall be deemed to have received benefits for such forfeited effective days", and that "A claimant shall refund all moneys received because of such false statement ..."."

Friday, October 11, 2013

Depending on where you live, debt collectors may be legally entitled to take your entire paycheck, house or car and completely clear out your bank accounts. According to the National Consumer Law Center:

"The economic downturn has strained millions of families to the breaking point, and the astronomic growth of the debt buyer industry makes them increasingly vulnerable to seizure of essential wages and property to pay their oldest debts. NCLC surveys the exemption laws of the 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands. Sadly, not one jurisdiction's laws meet basic standards so that debtors can continue to work productively to support themselves and their families."

Wednesday, October 9, 2013

This was a recent case Bland et al v. Roberts, 4th U.S. Circuit Court of Appeals, No. 12-1671, in which the 4th U.S. Circuit Court of Appeals ruled in favor of a former deputy sheriff in Hampton, Virginia, who claimed he lost his job in retaliation for his "liking" the Facebook page of a candidate running against his boss for city sheriff:

"Liking a political candidate's campaign page communicates the user's approval of the candidate and supports the campaign by associating the user with it....It is the Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."

How does this apply to Unemployment Insurance and misconduct? Here is a case decided prior to BLAND: In Mailed and Filed: AUGUST 25, 2011, IN THE MATTER OF: Appeal Board No. 553929:

"The evidence further establishes that the claimant was discharged on January 26, 2010 after the employer learned that she had posted derogatory comments as well as comments that could be perceived as threatening regarding coworkers on her "Facebook" page on January 19. The employer contends the claimant's conduct violated the employer's policy. However, the portions of the policy at issue, prefaced by the language "For the benefit and safety of employees, clients, and the Organization", clearly pertain to employee conduct in the office. Further, we are not convinced that the claimant could have known from the language of the policy that her personal "Facebook" postings would jeopardize her employment.

We note that while the claimant acknowledged that she made the comments, she also credibly testified that she did not intend for any of her coworkers to be able to access her "Facebook" page, and therefore could not have intended to offend or threaten her coworkers. We also find it significant that neither the employer nor the coworkers are named in the claimant's postings, and that the claimant had received no warnings regarding similar conduct during her seven and a half-year employment, Further, it is credible that the claimant's comments were made in jest, and that she did not mean the exaggerated and outlandish remarks made.

Accordingly, while the Board does not condone such conduct by the claimant, the employer's policy regarding employee conduct was too broad to put the claimant on notice that comments on her personal social networking page, that were made in jest and did not specifically identify either the employer by name or the names of her coworkers, was not sufficient to put the claimant on notice that her conduct could result in her discharge. Absent a specific policy that would provide such notice to an employee, we find that the claimant's conduct - while demonstrating extremely poor judgment - did not constitute misconduct for unemployment insurance purposes. We conclude that this claimant was separated from employment under non disqualifying circumstances."

Monday, October 7, 2013

You have earned the honor of being named an Access to Justice Champion, a new recognition sponsored by the Nassau County Bar Association. This inaugural honor recognizes NCBA member attorneys with outstanding service and dedication of time and effort to provide legal representation, guidance or advice on a pro bono basis to serve those in Nassau County.

Feel free to use this special designation in you CVs, resumes, publicity and marketing materials.

The complete list of Access to Justice Champions will be published in the October 2013 issue of the Nassau Lawyer, the official monthly journal of NCBA. We are also planning a press release announcing all the winners at that time.

On behalf of the NCBA Access to Justice Committee, congratulations and much appreciation for the work you do on behalf of those in need. Keep up the good work!

Friday, October 4, 2013

If you live next door to an abandoned home, or one is on your block, what are the legal ramifications if you and/or your neighbors maintain the abandoned home themselves because the town or municipality does not take prompt action?

In the 1970's, New York City officials had issues when individuals or neighborhood groups took matters into their own hands and created community gardens. At first, local government did not support these "self-help" methods.

Wednesday, October 2, 2013

The October deadline for FEMA proof of loss claims discussed in my September 30 post is now extended to April 2014 (28 or 29).

The FEMA website also states: "NOTICE: Due to the lapse in federal funding, portions of this website may not be updated and some non-disaster assistance transactions submitted via the website may not be processed or responded to until after appropriations are enacted,"

Tuesday, October 1, 2013

1. New York will use part of its share of billions of dollars in federal Superstorm Sandy aid to “fully compensate” storm victims who had flood insurance claims denied because of a hard-to-understand rule barring payments for damage caused by earth movement during a flood, New York Gov. Andrew Cuomo announced Saturday. Details have not yet been released.

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/